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Context Matters: A Better Libertarian Approach to Antidiscrimination Law

Kentucky Senate candidate Rand Paul, a Republican with libertarian leanings, recently questioned the provision of the 1964 Civil Rights Act that bans discrimination in restaurants, hotels, and other businesses. Bloggers and editorialists responded with a deluge of negative, and often unfair or inaccurate, commentary about the libertarian position on antidiscrimination laws.

The most serious charge has been that libertarian skepticism of antidiscrimination laws that apply to private entities reflects, at best, insensitivity to race discrimination. One blogger, reflecting a significant swath of progressive sentiment, argued that no matter how committed to racial egalitarianism any individual libertarian claims to be, “Libertarianism is a racist philosophy. Libertarians are racists.”

This is a rather odd criticism. For both philosophical and utilitarian reasons, libertarians are presumptively strongly opposed to any government regulation of the private sector. It naturally follows that libertarians presumptively oppose restrictions on private sector discrimination. It’s hardly an indication of racial animus, or even insensitivity, for libertarians to enunciate the exact same position on antidiscrimination laws that they take in all other contexts.

The progressive libel of libertarians as racial troglodytes for their consistent defense of private-sector autonomy is ironic, given that similar illogic has so frequently been used against modern liberals. When liberals defended Communists’ free speech and employment rights in the 1950s, their critics accused them of being Communist sympathizers, if not outright Communists. More recently, progressives have been accused of being American-hating jihadist sympathizers when they stood up for the rights of terrorism suspects. Critics have even charged civil libertarians with abetting racism for opposing hate speech laws.

The hate speech example is particularly telling. Some progressives argue that if libertarians were more sensitive to the concerns of minorities, they would sacrifice their anti-statist principles to the goddess of antidiscrimination. If so, progressives should similarly sacrifice their support for freedom of speech.

Confronted with the hate speech analogy, progressives will typically reply that supporting freedom of speech is completely different from supporting the right to engage in discriminatory action. After all, speech is just speech—sticks and stones, and whatnot—while discriminatory actions cause real distress to the victims. And besides, they argue, the marketplace of ideas can be trusted to ensure that egalitarian views will emerge victorious.

This argument does not stand up to close scrutiny. Hate speech can directly harm members of minority by causing psychological distress or inciting violence. And indirect harms from hate speech can be catastrophic if advocates of racist views are able to win control of the government. While minorities can generally find productive economic niches in even highly prejudiced but market-oriented societies, there is no safe haven for minorities if racist ideas dominate politics and lead to harsh discriminatory legislation.

Also, a free economic market protects minorities from discrimination to some degree because businesspeople have an economic incentive to hire the most productive workers and to obtain the most customers. By contrast, individual voters and political activists have no corresponding incentive to overlook or overcome their personal prejudices. Concern for the financial bottom line mitigates the temptation of economic entrepreneurs to discriminate; concern for the electoral bottom line, meanwhile, often leads politicians to stir up resentment against minorities.

As suggested above, supporters of antidiscrimination laws typically focus on laws banning racial discrimination. They do so because opposition to race discrimination has great historical and emotional resonance in a nation that had institutionalized racial oppression, including chattel slavery, for hundreds of years. However, federal antidiscrimination laws also apply to discrimination based on religion, sex, age, disability (including one’s status as a recovering drug or alcohol addict), pregnancy, marital status, veteran status, and even military recruiters. State and local antidiscrimination laws cover everything from sexual orientation to political ideology to weight to appearance to membership in a motorcycle gang.

The proliferation of antidiscrimination laws explains why libertarians are loath to concede the principle that the government may ban private sector discrimination. There is no natural limit to the scope of antidiscrimination laws, because the concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination. Is a school admitting students based on SAT scores? That is discrimination against individuals (or groups) who don’t do well on standardized tests! Is a store charging more for an item than some people can afford? That is discrimination against the poor! Is an employer hiring only the best qualified candidates? That is discrimination against everyone else!

The obvious retort is that antidiscrimination laws should be limited to “real” discrimination. But there is no consensus as to what constitutes “real” discrimination, nor, not surprisingly, does there appear to be any principled definition that legislatures have followed.

One can, for example, define discrimination as treating the alike unequally, but antidiscrimination law does not always follow this definition. Federal antidiscrimination law, for example, requires employers not simply to treat disabled and non-disabled alike, but to make costly “reasonable accommodations” for the disabled. Employers have the same legal obligation to their religious employees.

In short, to concede the general power of government to redress private discrimination through legislation would be to concede virtually unlimited power to the government. Libertarians, however, are often willing to make certain exceptions to their opposition to antidiscrimination laws, so long as they can identify an appropriate limiting principle.

Consistent with longstanding classical liberal suspicion of monopolies, many libertarians would allow the government to ban discrimination by such entities. Even more libertarians would endorse antidiscrimination laws applied to monopolies that were created or sustained by government edict. For example, if the government grants labor unions the exclusive power to represent workers, there is nothing “unlibertarian” about insisting that unions represent all employees without discrimination. The Anglo-American common law, much beloved by libertarian legal scholars, required at least some public accommodations—particularly those granted exclusive government charters or otherwise exercising monopoly prerogatives—to serve all comers.

This brings us back to the issue that got Rand Paul into hot water: Title II of the 1964 Civil Rights Act, which prohibited discrimination in public accommodations. At least one prominent commentator, Bruce Bartlett, has suggested that libertarian opposition to Title II should serve as a reminder that the existence and persistence of Jim Crow in the South reflected libertarian sensibilities.

Bartlett’s position is incoherent philosophically, and counterfactual historically. From a philosophical perspective, libertarianism and Jim Crow laws are completely at odds. Consistent with their classical liberal heritage, libertarians believe that the government must treat all its citizens as individuals with equal rights, and therefore may not discriminate on arbitrary grounds, like race. The government must also apply its laws fairly and impartially, including by protecting members of unpopular minority groups from private violence. A penumbra of this opposition to government discrimination is that the right to vote must not be denied for arbitrary reasons. Finally, the government may not require private parties to discriminate.

Historically, many of the leading advocates of civil rights for African Americans in the late 19th and early 20th century—for example, Moorfield Storey, the first president of the NAACP—were, if not hardcore libertarians, at least classical liberal fellow travelers. In more modern times, the few prominent libertarian commentators of the early 1960s, such as Ayn Rand and Milton Friedman, supported the provisions of the 1964 Civil Rights Act that banned discrimination by state and local government officials. Conservatives, by contrast, typically bought into the notion of “States’ Rights.”

Rand, Friedman, and other libertarians, however, opposed on principle the application of antidiscrimination laws to private parties. Many libertarians today, including me, think our predecessors were wrong in their blanket opposition to such laws, in part because they neglected some of the legal and historical context.

First, the absence of formal discriminatory legislation did not mean that libertarian principle was being respected. I’ve already noted that the common law rule barred discrimination in places of public accommodation. After the Civil War, courts, both north and south, manipulated, changed, or ignored their preexisting common law to deprive African Americans the benefit of that rule. Similarly, courts that consistently invalidated minor contractual restraints on the alienation of private property nevertheless upheld ethnically restrictive covenants that at times barred most of the residents of a given city from purchasing encumbered properties. The refusal to apply a general legal rule because the beneficiaries would be African Americans was a violation of their right to equal protection of the law.

Second, to say the least, segregation and exclusion of African Americans in public places in the South wasn’t entirely a voluntary choice of business owners. Jim Crow segregation involved the equivalent of a white supremacist cartel. The cartel was enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and extra-legal harassment of anyone who challenged the racist status quo. This violence and extra-legal harassment was often undertaken with the approval of local officials; the latter, in fact, were often the perpetrators.

To break the southern Jim Crow cartel there were two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government to prevent violence and threats against, and extralegal harassment of, those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that threats of violence and harassment would generally be met with an appeal to the potential victim’s obligation to obey federal law. The former option was arguably more appealing from a libertarian perspective, but it was completely impractical. Not surprisingly, many prominent libertarians who have commented on the issue recently have stated that they would have voted for the 1964 Civil Rights Act, including its public accommodations provisions.

Critics of the libertarian position on antidiscrimination laws argue that to avoid being deemed reactionary or irrelevant, libertarians must more generally abandon their opposition to private sector antidiscrimination laws. One major underlying reason for this insistence is the belief that antidiscrimination laws somehow magically transform members of despised minority groups into full equal citizens in the eyes of the majority. Even a generally sober commentator like George Will believes that Title II “not only got African-Americans into public accommodations, [but] changed the thinking of the white portion of the country as well.”

Antidiscrimination laws can plausibly accelerate trends toward greater tolerance of minorities. These laws can also force a local majority, such as southern whites in the 1960s, to heed the values of a national majority, such as non-southern whites, who by 1964 had turned strongly against racial segregation.

But antidiscrimination laws are unlikely to provide much protection to a minority group when the majority of the voting population is hostile to that group. America’s landmark civil rights legislation was enacted and implemented in the 1960s, when racial attitudes of whites had already liberalized substantially; in the 1930s, when white public opinion was solidly hostile to African-Americans, President Roosevelt refused to support even anti-lynching legislation.

Antidiscrimination laws, in other words, typically follow, rather than cause, the liberalization of attitudes toward minority groups. Contrary to conventional wisdom, the effect of antidiscrimination laws on public attitudes is rarely dramatic. Even the 1964 Civil Rights Act did not noticeably accelerate the pace of liberalization of whites’ racial attitudes.

Given their strong anti-statist presumptions, libertarians will generally remain presumptively opposed to the panoply of modern private sector antidiscrimination laws. (This includes, by the way, libertarian opposition to conservative attempts to ban private sector affirmative action preferences.) Many libertarians, however, would likely support antidiscrimination laws if they evolved into default rules that parties could contract around if desired. For example, an antidiscrimination law could replace the common law “at will” employment with a default rule that no employer may discriminate based on a variety of criteria. If an employer nevertheless wished to retain the right to discriminate on one of the prohibited bases, it would have to acknowledge that desire to potential employees, and, therefore, inevitably to the public at large. The subject of default rules, however, requires significantly more attention than this essay can give it.

Beyond that, my own view is that the basic federal laws banning discrimination in employment, housing, and public accommodations, as originally conceived in 1964—before the courts and civil rights bureaucracies devised problematic doctrines like “disparate impact” liability—were relatively benign. If everyone from farmers to military contractors to ACORN is able to successfully lobby the government to protect their interests, I don’t find it especially troubling that members of minority groups, who have more legitimate grievances than most legislative supplicants, also use legislation to protect their interests.

That doesn’t mean that libertarians have some obligation to support basic private sector antidiscrimination legislation; rather, I think that from both a moral and tactical perspective, opposition to such legislation should be rather low on the libertarian priority list. Indeed, I would be troubled if there was a sudden popular move to repeal antidiscrimination legislation, if it were unaccompanied by broader libertarian political trends, because it would suggest that opposition to such laws came arose from hostility to minority groups, not from opposition to Big Government.

I think, however, libertarians can and should insist that a line be drawn at the point where such laws infringe on the constitutional rights to freedom of speech, freedom of religion, expressive association, and other civil liberties. The drafters of the 1964 Civil Rights Act were reasonably sensitive to such concerns, and limited the scope of the Act accordingly. For example, religious organizations, small businesses, and private clubs were exempted from provisions of the Act. In the decades since, though, civil liberties have increasingly come to be seen by antidiscrimination activists as inconvenient and unnecessary obstacles to a discrimination-free world.

The result has been, for example, attempts to force private Christian schools to hire unmarried pregnant teachers, to suppress campus speech that allegedly creates a “hostile environment,” to force private membership organizations to enact politically correct membership policies, to force individuals to live with gay roommates, and to prosecute neighborhood associations for objecting to the placement of halfway houses in their neighborhoods. (These and many more examples are documented in my book You Can’t Say That! The Growing Threat to Civil Liberties from Antidscrimination Laws (Cato Institute 2003).)

Americans can’t rely on the courts to protect them from antidiscrimination laws that infringe on constitutional rights. In the 1980s, a series of Supreme Court rulings suggested that the government’s purported “compelling interest” in “eradicating” even trivial forms of discrimination justified running roughshod over the First Amendment. The Supreme Court seems to have backed away from this position, but the prevailing sentiment among the younger generation of legal scholars is that the Court’s earlier stance was correct. Few law professors, for example, were willing to defend the Boy Scouts’ right to establish its own membership policies when the Scouts defended that right before the Supreme Court in Boy Scouts of America v. Dale.

Marc Stern of the American Jewish Congress, frustrated with the refusal of his liberal colleagues to accept religious exemptions to civil rights laws, has noted that antidiscrimination principle “is taking on a quasi-religious status. Maybe for some people questioning civil rights [legislation] is like questioning God.” If so, it’s not surprising that the libertarian position on antidiscrimination laws attracts such fierce criticism.

The laudable goal of the ever-broadening antidiscrimination edifice is to achieve a fairer, more just society. Laudable goals, however, don’t justify giving the government excessive authority, or disguising the implications of doing so. I’m reminded of the “Sexual Harassment Panda” episode of South Park. Kyle’s father explains that antidiscrimination law tells us what we can say and do in the workplace and elsewhere. Kyle responds, “But isn’t that fascism?” His father retorts, “No, because we don’t call it fascism.”

—

David E. Bernstein is the Foundation Professor at the George Mason University School of Law.

Also from This Issue

In his reply essay, The Freeman’s Sheldon Richman drives home David Bernstein’s point “that the Southern states operated the equivalent of a ‘white supremacist cartel’ in public accommodations,” but suggests that “direct nonviolent social action” would have been superior to a legal remedy. “Social pressure – the public shaming of bigots – was working,” Richman argues. Title II was not only unnecessary, Richman says, but it shifted the focus from local nonviolent action to Washington, D.C., and laid the groundwork for further clearly unjustified legal limits on private discrimination.

In his reply to this month’s lead essay, Cato Unbound’s own Jason Kuznicki argues that “what we got from the 1964 CRA was on balance much, much less coercion. We also got a less racist society…I can’t say exactly why the 1964 CRA worked, but I suspect that Title II, as its most innovative feature, played a big part.” Not only did Title II work, Kuznicki finds it perfectly consistent with his own Hayekian ideological standards. Kuznicki then asks if Title II is Constitutional and expresses some doubts, but implores originalists to focus their energies elsewhere. “[A]dvocates of limited government have scant political capital, so let’s not squander it,” he concludes.

Harvard economist Jeffrey Miron vigorously dissents from the conclusion of David Bernstein’s lead essay. “[L]ibertarians should not only oppose Title II,” he writes, “they should shout that opposition from the highest roof tops.” Miron argues that the elements of the Civil Rights Act that targeted government discrimination would have sufficed: “[A]CRA that merely targeted government discrimination would likely have changed the social norm, allowed non-discriminatory forces to emerge, and toppled the Jim Crow regime.” The primary consequences of Title II, Miron argues, were to weaken property rights and set the stage for further interventions such as smoking bans and safety regulations, while “institutionalizing the view that blacks are too weak to overcome discrimination on their own.” Miron finds the libertarian case against Title II so strong that he is surprised to see libertarians defend it. “[I]f libertarians are supporting Title II out of political expediency, they are on a fool’s errand.”

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